Proving failure to register as a sex offender

Failure to register as a sex offender is a deceptively difficult charge to plead and prove. In the abstract, it seems easy: Dude didn’t register! But criminal law is never that simple.
    One difficulty is always figuring out which way to charge the offense. Chapter 62 of the Code of Criminal Procedure provides a lot of requirements for sex offender registration. In a typical case, a defendant might appear to violate multiple requirements: If he just up and moves, he may have failed to give seven days’ notice before moving, then failed to register within seven days of moving, but because each one is a different offense, the State must pick one and get a unanimous verdict on it.
    Further complicating matters is the question of a mental state: The State must show that the defendant acted intentionally, knowingly, or recklessly. But historically it has been an open question as to which element that mental state attached. If the State has to prove the mental state for the specific failure to register—i.e., that the defendant intentionally failed to register seven days before a move—these cases would become much harder to win.
    In two cases, one in 2015 and one this February, the Court of Criminal Appeals has resolved most of the ambiguity regarding the mental state for this offense, and it did so in a way that should make prosecutors happy.

Robinson v. State
In 2015, the Court of Criminal Appeals seemed to solve the problem with Robinson v. State.1 In that case, the Court held that the evidence must show that the defendant acted intentionally, knowingly, or recklessly, but only regarding the defendant’s duty to register. That is, the State had to prove the defendant’s awareness of his duty to register. The Court held there was no requirement to show a mental state regarding a particular failure to register.
    You’ll notice I said seemed to solve the problem. The majority opinion in Robinson got only five votes. The other four judges were concerned that the majority had set up a strict liability offense.2 Those four would have required the State to prove a mental state for the actual omission for which the defendant was charged (for instance, failing to provide seven days’ notice prior to a move). Considering that the State often cannot show why a defendant doesn’t properly register, this requirement would make it much harder to get convictions for this offense.
    After this narrow win for the State, it looked bad when, a mere seven months later, the Court granted review of a case that presented nearly the same question as Robinson. Was the Court re-evaluating its position?

Febus v. State
Albert Febus was a sex offender who was registered as living at 6110 Glenmont Drive, Apartment 57, in Houston.3 In 2013 he changed his registration to 6110 Glenmont, Apartment 45, but when officers did a compliance check at that location, he was not to be found. The State charged him with intentionally or knowingly failing to notify police of an address change.
    At trial, Febus claimed that he had moved to a neighboring building in the same complex, 6100 Glenmont Dr., Apartment 45. Febus’s defense was that he had told the registration officer that he was moving to 6100, but through some clerical error that was not his fault, the documents came out 6110. The manager who handled both buildings testified she’d never seen Febus at the complex, but Febus called as a witness the individual listed on the lease at 6100 Glenmont Dr., Apartment 45, who testified that Febus informally subleased from him and was only ever at the apartment between 6 p.m. and 9 a.m. (when the manager was not there).
    The jury found Febus guilty.
    On direct appeal, in a brief written before Robinson was handed down, Febus argued that the State had failed to prove what it pleaded: that he intentionally or knowingly failed to give his new address to police. According to Febus, the evidence showed that perhaps some mistake had occurred, but at any rate the State had failed to show any intent to not register.
    In a short, unpublished opinion handed down three months after Robinson, the First Court of Appeals did little more than point out that Robinson defeated Febus’s claim.4 Because the State had proven Febus was aware of his registration obligations, the evidence was sufficient to support the conviction, regardless of whether the State proved any intent or knowledge behind this specific failure to register. Febus petitioned for discretionary review.
    After the Court of Criminal Appeals granted review, a six-judge majority affirmed the First Court’s judgment while somewhat criticizing its opinion.5 Writing for the Court, Judge Newell began by noting that, as a straightforward matter of sufficiency, Robinson controlled: The State had to prove Febus’s awareness of his duty to register, not the particular way in which he failed to register. The Court did not back away from this holding.
    But Judge Newell also went farther, noting that the court of appeals “did not fully address” Febus’s argument because Febus’s claim of a clerical error was actually a claim that he had complied with his registration requirements, and it was the authorities who had failed. Febus was claiming, in other words, that the State had not proven that his failure to register was a voluntary act on his part. The First Court had not addressed this claim.
    In Robinson, Presiding Judge Keller had written a concurring opinion arguing that in cases where defendants claim they tried to register but were somehow rebuffed by authorities,6 the correct defense was that the failure to register was involuntary.7 Because the Penal Code requires proof of a voluntary act to prove a crime, such a defense would exempt the defendant from criminal liability.8
    In Febus, Judge Newell adopted the reasoning of this concurrence. As part of the sufficiency claim, the Court had to review whether there was sufficient evidence to show that it was Febus who had given the wrong address, rather than a clerical error on the part of authorities. The Court held there was sufficient evidence. First, the registration officer testified that Febus had told her “6110 Glenmont”—Febus had signed the new forms with that address on them. Second, in light of the sketchy nature of the evidence, the jury was not even required to believe Febus’s evidence of living at 6100 Glenmont. From the evidence, the jury could have concluded that when Febus changed his registration, he simply left the apartment complex altogether, living at neither 6100 nor 6110 but instead giving a fake address to police and making up this story when caught.
    In a final section of the Court’s opinion titled “Stare Decisis,” Judge Newell noted, “It has also been suggested that this Court reconsider its holding in Robinson. …” Judge Newell characterized the losing argument in Robinson as wanting “a second culpable mental state that attaches to the act of failing to register.” After briefly discussing policy reasons for not overturning precedent, the Court declined to revisit its holding from Robinson.
    However, Judge Newell pointed out that the facts of Febus show that Robinson might not have been determinative of the case. In Febus, the State put on evidence showing that Febus was aware of his registration requirements and that he had successfully registered on several prior occasions. Because the State showed Febus knew the requirements and was capable of meeting them, the jury could have inferred any failure was intentional.
    In a dissent joined by two other judges, Judge Richardson noted that he did not join Robinson because he believed it created a strict liability offense, and for the same reason he did not join this opinion.9 Indeed, Judge Richardson spent much of his opinion attacking the theoretical underpinnings of Robinson and suggesting it should be overturned.

Takeaways
The most obvious takeaway here is that this issue seems to be settled. Robinson got five votes; three years and an election later,10 the same proposition in Febus got six. Prosecutors can rest assured that, for the foreseeable future, the only mental state they will need to prove relates to the defendant’s knowledge of his duty to register. So long as the State shows the defendant knew of this duty, the question of why he failed to register is, as a matter of sufficiency law, not the State’s problem.
    But Febus and Robinson also show that the Court of Criminal Appeals is concerned about the sort of defenses often raised in these cases. Febus’s defense was that the registration officer made a typo; Robinson’s defense was that the registration officer would not let him register. If such claims are believed, they are extremely sympathetic defenses. What Febus and Robinson make clear is that these defenses present questions of fact for the jury—did the defendant actually fail to register?—not legal questions for an appellate court. Even if the State does not have to show a mental state for the failure to register as a matter of legal sufficiency, it very well might need to show some reason for the failure to convince a jury to reject a defendant’s defensive claims.

Endnotes

1  466 S.W.3d 166 (2015).

2  Id. at 175 (Alcala, J., concurring).

3  Febus v. State, No. 01-14-00942-CR, 2015 WL 6081647, *1 (Tex. App.—Houston [1st Dist.] October 15, 2015), aff’d ___ S.W.3d ___, 2018 WL 850336 (Tex. Crim. App. 2018) (mem. op. not designated for publication).

4  Id., at *3 (“The holding in Robinson is dispositive of this case”).

5  Febus v. State, ___ S.W.3d ___, 2018 WL 850336 (Tex. Crim. App. Feb. 14, 2018).

6  Robinson had testified that he tried to register several times, but the officer just kept telling him to come back the next day. Robinson, 468 S.W.3d at 169.

7  Id. at 175 (Keller, P.J., concurring).

8  See Tex. Penal Code §6.01(a).

9  Febus, 2018 WL 850336, at*6 (Richardson, J., dissenting).

10  Of the four judges who did not join Robinson, two left the Court following the 2016 election.